Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (held at Cheltenham on 18 November 2009 under reference 198/09/00391) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).
DIRECTIONS:
A. The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.
B. In particular, the tribunal must investigate and decide whether the claimant was capable of work on and from 23 June 2009. In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
Reasons for Decision
1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error in point of law and agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the tribunal’s decision.
A. Why I have set the tribunal’s decision aside
2. I have set the tribunal’s decision aside, because the claimant did not receive a fair hearing. Specifically, his case was listed too soon and he did not have a chance to provide evidence in support of his appeal in accordance with the time allowed by the tribunal’s own documentation.
3. The claimant was receiving employment and support allowance. Following an assessment, his entitlement was terminated on 23 June 2009. He lodged an appeal on 20 July 2009. In September 2009, the tribunal became aware that he had acquired the services of his representative. On 9 November 2009, the tribunal sent the claimant a pre-listing Enquiry Form. He was asked whether he wanted an oral or paper hearing. He opted for the latter. In that event, the Form stated: ‘we will go ahead on the basis that you have no objection to your appeal being decided by the Tribunal in your absence. You can still write to us with anything you would like the Tribunal to take into consideration, but please do so within the next 14 days.’
4. The final sentence in that passage is worded as a request. Its purpose is clearly to allow time for a claimant who has opted for a paper hearing to send in any evidence that the tribunal does not already have. In effect, it is an undertaking not to hear the case sooner than the end of the 14 day period.
5. The claimant signed the Enquiry Form on 13 November and it was received by the regional office on 16 November. The tribunal heard and dismissed the appeal on 22 March 2010. I cannot tell whether the Enquiry Form was before the panel who heard the case.
6. The appeal was heard and dismissed within 14 days of the date when the Form was sent to the claimant, which is the earliest date from which the 14 days can run. His representative was obtaining medical evidence in support of his appeal, but it was not before the tribunal on 18 November.
7. The 14 days is not provided for in the tribunal’s rules of procedure. However, those rules are in addition to the basic principles of natural justice and a fair hearing. Applying those principles, it is essential for a claimant to know the earliest date on which an appeal may be heard and, therefore, the latest date on which evidence must reach the tribunal. Many claimants are not represented. They may only discover the ways in which their appeal may be heard when they receive the Enquiry Form. And this may be the first time that they realise the time scale within which they must produce the evidence. Even if the claimant is aware of the procedures, the actual deadline for submitting evidence is not fixed until the Enquiry Form is issued.
8. In this case, the tribunal did not allow the claimant the full 14 days in which to submit evidence. That was certainly a mistake by the clerk who arranged for the appeal to be heard. It may also have been a mistake by the panel that heard the case. Either way, the tribunal denied the claimant a fair hearing.
9. Before leaving the case, I want to comment on the claimant’s application for the decision to be set aside under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2685). The application was refused. The judge who decided the application wrote:
‘The Tribunal finds that the appellant elected to have his appeal determined without a hearing. The representative did not inform the Tribunals Service that medical evidence was being sought and did not request time to do so in spite of registering their interest in the appeal in September 2009. The representative must be aware that if their client elects to have his appeal determined without a hearing, the appeal will be heard at any time. That fact must be taken into account when taking instructions and lodging an appeal. It is too late to complain after the event.’
That passage contains valuable advice for representatives. However, in one respect it is wrong. The sentence that I have put into italics is contrary to what claimants are told on the pre-listing Enquiry Form. This may be an isolated case of a judge overlooking that wording. I trust that her comments do not reflect a general misunderstanding by the salaried judiciary of the tribunal’s standard documentation.
B. What will happen at the rehearing
10. The tribunal must follow the directions I have given.
11. Unless and to the extent that I have directed otherwise, the rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.
12. The tribunal will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.
13. The tribunal must come to its own conclusions on issues of both fact and law that it considers. Neither my decision itself nor anything I have written in my reasons for decision is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.
Signed on original |
Edward Jacobs |